According to the Serbian Family Act marriage is cohabitation between two persons of the opposite sex governed by the law. The same act, prescribes substantial and formal requirements for valid marriage. This paper aims to present a review of these requirements in domestic and comparative law as well. It analyzes each condition separately, giving an overview of their historical development and the way they are regulated today in different legal systems. According to domestic law, substantial requirements are the following: opposite gender, expression of will to get married, cohabitation and lack of marriage impediments. However, there is a tendency in the contemporary family law to reduce marriage impediments, which leads to the liberalization and facilitation of marriage formation. Since marriage is very often concluded in religious form, article also gives an overview of the ecclesiastical rules concerning marriage. Finally, it analyzes and compares statistical data concerning number of concluded marriages and divorces in Serbia thirty years ago and in present time.
Although we cannot ignore the fact that the law in some way affects the family from the very beginning by determining who is considered a family member, what are their mutual rights and obligations, how certain relationships are formed and how they end, modern understanding of the family, however, necessarily implies respect for the extremely wide field of family, that is parental autonomy. Such an understanding could, in the most extreme form, result in an almost complete absence of responsibility of the state or the legal system for everything that happens in the family. In this sense, there are very weak formal legal obligations of the state in taking an active role in strengthening the family, and in practice there is virtually no involvement of the state in strengthening ties within the family before certain problems arise. On the other hand, if someone has the potential to protect the family and its members, then it is certainly the legal system. The protection of the family must not be reduced only to the question of how to do it, but also at what moment or whether the protection and development of healthy family relationships must be an issue to be addressed much earlier, even before the family is formed. In that sense, counseling or conversations with competent persons, can be of special importance. Also, although they are relatively foreign to our culture, the popularization of prenuptial agreements and presenting future spouses or common law partners with the possibilities of this agreement provides, can contribute to the avoidance of later property disputes. In this paper, the focus will, however, be on certain solutions that can help in situations where there is already a disturbance in the relationship between family members, that is between spouses or common law partners. Any attempt to calm the situation, or moderate and careful intervention in family relations, can primarily be achieved by insisting on certain alternative ways of resolving disputes. In addition, the existence of specialized judges, as well as lawyers, who would implement significant changes in the education system of future lawyers, but also in the field of practice, can also greatly contribute to this goal. Finally, certain changes in the field of family substantive law can also be of great importance. In that sense, this paper primarily focuses on certain solutions proposed in theory, their analysis in the context of Serbian legislation, as well as on possible further changes in domestic regulations. Namely, although some proposals have already found their place in the positive legislation of Serbia, it remains uncertain to what extent these provisions have been applied and whether they really contribute to maintaining stable family relations in situations when relations are seriously disturbed.
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